Trial by video could endanger prisoners' rights, say lawyers

Defence lawyer Gary Gotlieb has questioned the Govt's decision to 'rush' into further changes to the judicial system. Photo / Greg Bowker

Prisoners could miss out on important rights to consult a lawyer and cross-examine witnesses if proposed cost-cutting video links are taken too far, say lawyers.

Justice Minister Simon Power is considering the use of video links as part of reforms designed to speed the flow of cases through the clogged court system.

Lawyers spoken to by the Herald yesterday said hearing simple matters such as adjournments via video link would not compromise the right to a fair hearing.

But they raised several other concerns with the proposal - including cutting prisoners' time with their lawyers and the possible curtailing of rights to assess and cross-examine witnesses.

Mr Power has said the use of video links would have to be checked against the Bill of Rights, which entitled everyone to a "fair and public hearing", to be present at their trial and to be able to examine witnesses.

Video links between jails, legal offices, police stations and courtrooms would probably be initially used for routine appearances, such as pre-trial sessions, but could extend to cover all aspects of the court system.

Possible benefits of the video-link system include reducing the cost of transporting prisoners to and from prison multiple times during a court case.

Defence lawyer Gary Gotlieb said there was merit in following Australia's example and adjourning hearings over video rather than requiring everyone to attend court.

But he said a two-year trial of major time-saving changes to the justice system that began a week ago - including doing away with witnesses giving evidence at pre-trial hearings such as depositions - should be given a chance to settle in first.

He questioned why the Government would "rush" into further changes when the need for many court appearances had just been scrapped. "Let's just see how this [two-year trial] goes first."

Mr Gotlieb said many lawyers used court appearances as a chance to meet and advise clients who were in prison.

Prison interview rooms were already stretched, and it was often difficult to meet clients in jail, even with an appointment.

Mr Gotlieb said many of the current changes were being driven by "boffins" who had never practised law. "They would need to include the cost of building new interview rooms in prisons [in assessing the cost of a video-link system] and I bet they haven't."

Auckland University associate law professor Scott Optican said the Bill of Rights Act probably did not require the defendant to be present at every stage of the court process - for example, bail hearings, callovers and some legal arguments over evidence.

However, there were some "critical phases" of the process where a video link would not satisfy the right to be present at your own trial. That might include the main part of the trial itself, sentencing and certain pre-trial applications. Appearing by video link during the main trial would hamper the defendant's ability to test the credibility of key witnesses and carry out cross examination. "The question is whether virtual presence is enough."